1. Fazal-ur-Rehman, J.--This ATA Murder Reference No, 22/2002 has been sent by the learned Judge, Anti-Terrorism Court, Mekran at Turbat whereby, he convicted the accused persons namely Munshi Muhammad son of Hamal and Aslam son of Haider in absentia and sentenced them in the following manner:-- 2. Accused Munshi Muhammad son of Hamal is convicted under Section 302(b) of the PPC read with Section 7(a) of Anti Terrorism Act, 1997 awarded punishment of death. He be hanged by neck till be is dead. Sentence of death shall not be executed unless confirmed by Hon'ble High Court of Balochistan.
2. 3.Accused Aslam son of Haider is convicted under Section 302(b) of the PPC read with Section 7(a) of Anti-Terrorism Act, 1997 awarded punishment of death. He be hanged by neck till he is dead.
3. Sentence of death shall not be executed unless confirmed by Hon'ble High Court of Balochistan.
4. 4.All the above accused are required to pay compensation of Rs, 100,000/- each as required under Section 544-A Cr.P.C. to the legal heirs of deceased Fazal Karim.
5. 5.The accused Munshi Muhammad and accused Aslam are absconders and both are also convicted under Section 21-L of Anti-Terrorism Act, 1997 and sentence to suffer R.I for three years.
6. 2.The learned trial Court vide impugned judgment also convicted co-accused Abdul Qadeer son of Wahid Bakhsh u/S. 302(b) PPC R/W Section 7(a) of Anti-Terrorism Act, 1997 and sentenced him imprisonment for life and to pay compensation amounting to Rs, 100,000/- to the legal heirs of deceased Fazal Karim as per provisions contained u/S. 544-A Cr.P.C. It is stated that the said Abdul Qadeer also filed an appeal against his conviction being Criminal Appeal No, 60/2002. It may also be pointed out that the names of absconding convicts namely Munshi Muhammad son of Hamal and Aslam son of Haider were also added as appellants in the same appeal but since they did not surrender before the law and being fugitive from law, the appeal was dismissed in limini to their extent. It is stated.that the matter has been compromised between co-convicted Abdul Qadeer and complainant party and he has since been released. The learned trial Court vide impugned judgment has however, acquitted of the charge respondents namely Jamadar Muhammad Khan and Nizam. The learned Additional Advocate General Balochistan filed Criminal Appeal Being No, 66/2002 against acquittal of aforesaid respondents. The request for impleading the name of co- acquitted accused Zahid in the array of respondents was however, not entertained being barred by time as per order of this Court dated 4.11.2002. Both the above murder reference and criminal appeal have been taken together and will be disposed of by one and the same judgment.
7. 3.The occurrence is stated to have taken place on 19.6.2002 at about 1:15 p.m. in main bazaar main chowk, Turbat whereby, a case being Crime No, 71/2002 Police Station, Turbat under Section 302 Qisas & Diyat Ordinance R/W Sections 147, 148, 149 (Ex-P/5-A) was registered on the basis of Fard- e-Bayan Ex-P/1-A. According to complainant on the said date at about 1:30 PM, he was informed about the murder of his relative Haji Fazal Karim in the shop of Kabab situated in main bazaar chowk, Turbat by firing upon him with Kalashnikov. On the receipt of information, he went to hospital where, he found the dead-body of his relative lying in the hospital. The occurrence is stated to have been witnesses by PWs Naseem, Saeed and Pazir (given up), all the aforesaid six accused persons were nominated to have committed the murder of Haji Fazal Karim. The motive for the occurrence was stated to be an old enmity. Accused Abdul Qadeer was arrested on the same day. After usual investigation Abdul Qadeer was sent to face his trial while the names of Munshi Muhammad, Jamadar Muhammad Khan, Aslam, Zahid and Nizam were showing Column No, 2 of Challan. Cognizance of the case was taken by the learned Judge, Anti-Terrorism Court on 15.7.2002.
8. 4.On 29.7.2002 separate charges u/Ss. 302, 147, 148, 149 PPC and 7(a) of Anti-Terrorism Act, 1997 were framed against the accused Abdul Qadeer and absconding accused respectively in absentia by the learned. Special Judge, Anti-Terrorism Court, Mekran at Turbat to which, accused Abdul Qadeer pleaded not guilty while it was presumed that absconding accused pleaded not guilty.
9. 5.In support of its case, the prosecution examined as many as eight witnesses, brief description whereof, is as under:-- PW-1 Muhammad .Rahim son of Muhammad Amin, he is the complainant who lodged the report.
10. According to him, on 19.06.2002 he was in Turbat Bazar where he came to know about the murder of Fazal Karim at about 1-30 p.m. He went to hospital where, the found the dead-body of Fazal Karim. According to him Pazir, Naseem and Saeed were present in the hospital and . he was informed by them that at the time of occurrence, they were present at the place of incident. He was informed that accused Munshi Muhammad, Muhammad Khan, Qadeer, Aslam, Zahid came in a red colour Alto car and they stopped their car in front of Kabab shop. According to him Qadeer, Aslam and Zahid were armed with Kalashnikovs while the Weapons the other accused persons were holding could not be identified. According to him accused persons started firing upon deceased Fazal Karim as a result of which Fazal Karim died. at the spot. On receipt of such information, he made Fard-e-Bayan. Ex-P/1-A which was incorporated in the FIR Ex-P/5A. In cross- examination, he admits the existence of enmity. He is not an eye-witness of the occurrence. PW-2 Naseem son of Fazal Karim is an eye-witness and is material grandson of deceased.
11. According to him, he was accompanying the deceased. He has stated that he alongwith his maternal grandfather (Fazal Karim) and Pazir (given up) came to Turbat Bazar from Buleda in connection with some necessary work. According to him, when they reached Turbat main bazaar in front of Gulrang Market, Fazal Karim went to purchase Kabab from shop situated in front of Gulrang Market. This witness has stated that he and Pazir remained standing at Gulrang Market near chappal shop while his grandfather deceased Fazal Karim went in Kabab shop. He has further deposed that meanwhile Saeed and Shakil also came there. According to him, when they were exchanging greetings, meanwhile, a red colour Alto car came and stopped at Kabab shop.
12. According to him, the number of occupants of the car were six. He has stated that Munshi Muhammad, Abdul Qadeer and Aslam were holding Kalashnikovs in their hands alighted form the car and started firing upon deceased Fazal Karim,. Acquitted accused Jamadar Muhammad Khan, Nizam and Zahid. Ali were stated to remain sitting in the car. According to him as a result of firing of above persons Fazal Karim died at the spot and that accused persons decamped from the place of occurrence. He has identified Abdul Qadeer in the Court to be the same person who made firing upon deceased Fazal Karim. According to him police came there and the deceased Fazal Karim was taken to hospital. In cross-examination he denied the suggestion that on 19.6.2002 from 12-00 p.m. to 1.30 p.m., he was playing cards in Mehnaz Hotel. He admits that Fazal Karim was his maternal grandfather but has denied the suggestion that he deposed on account of relationship.
13. He has also denied that suggestion regarding his non-presence in front of Gulrang Market'near Chappal shop. The existence of enmity between accused Munshi Muhammad and deceased Fazal Karim prior to incident has not been denied. In cross-examination, he has stated that the car was being driven by accused Nizam while accused Munshi Muhammad was occupying front seat while Abdul Qadeer, Muhammad Khan, Aslam and Zahid were on rear seat. He has also stated that he was standing at a distance of ten steps from accused persons.
14. PW-3 Muhammad Saeed, he is also an eye-witness of the occurrence who deposed that on 19.6.02 he alongwith Shakil came to Turbat from Buleda in connection with necessary work. According to him at about 1.00 p.m., they met Pazir and Naseem in front of Chappal shop Gulrang Market.
15. According to him, the Kabab shop was situated opposite to Gulrang Market where deceased had gone for purchasing Kabab. According to him, a Alto car red colour came and stopped in front of Kabab shop, there were six persons in the said Alto car. According to him, three accused persons namely Munshi Muhammad son of Hamal, Abdul Qadeer son of Haji Wahid Bakhsh and Aslam son of Haider came out from the Alto car and they started firing upon deceased Fazal Karim by means of Kalashnikov. According to him accused Jamadar Muhammad Khan, Nizam and Zahid were sitting in the Alto car. He has stated that on account of firing of above three accused persons, Fazal Karim died at the spot.
16. He has further added that the accused persons after committing offence fled-away from the spot in the vehicle. He has stated that police came and the dead-body of deceased was taken to hospital. He identified accused Abdul Qadeer in the Court to be the same person who made firing upon deceased Fazal Karim. In cross-examination, he denied the suggestion that on 19.6.2002 from 12.00' p.m. to 1.30 p.m., he alongwith Naseem was playing cards in Mehnaz Hotel. He has however, admitted that Fazal karim was his near relative but has denied the suggestion deposing falsely on account of enmity. He has also denied the suggestion regarding his non-presence near Gulrang Market in front of chappal shop. PW-4 Zahid Hussain, at the relevant time he was posted in Police Station, Turbat. According to him on receipt of information, he and other police officials accompanied SHO to hospital where, they found the dead-body of deceased Fazal Karim lying on stature. The dead-body was examined and memo. Ex-P/4-A was prepared. The bloodstained Chadar (Article-2) was taken into possession vide recovery memo Ex-P/4-B. According to this witness from hospital they went to the place of occurrence and secured three empty of Kalanshnikov vide recovery memo. Ex-P/4-C. He has also stated that accused Abdul Qadeer was arrested from his house but the red colour Alto car could not be found during search of the house. He has also produced Ex-P/4-A.
17. PW-5 Rehmatullah, he is the Investigating Officer who at the relevant time was posted as SHO Police Station, Turbat. According to him on receipt of information regarding murder of Fazal Karim, he went to the place of occurrence and took the dead-body of deceased to hospital. He has stated that Muhammad Rahim lodged report through Fard-e-Bayan in hospital and FIR Ex-P/5-A was registered. He took the investigation in hand, he held inquest in respect of dead-body vide Ex-P/5- B. The blood-stained chadar was taken into possession vide Ex-P/4-B. According to him, he then went to the place of incident where three empties were secured and taken into possession vide Ex- P/4-B. Blood-stains were taken into possession vide recovery memo. Ex-P/4-D. He prepared site- plan Ex-P/5-C. According to him accused Abdul Qadeer was arrested from his house and the search of the house was carried out vide memo Ex-P/4-A. He recorded statements of eye- witnesses u/S. 161 'Cr.P.C. According to him, the post-mortem examination of deceased could not be conducted as the legal heirs of deceased were not willing and the dead-body was handed over to the legal heirs vide Ex-P/5-D. He has identified accused Abdul Qadeer in the Court.
18. PW-6 Falak Sher, he is owner of Kabab Shop situated in front of Gulrang Market main Bazar main Chowk, Turbat. According to him on 19.6.2002, he was present in his shop where an old person came and placed order for Kabab and Roti. According to him after hearing burst of firing, he concealed himself beneath the table on account of fear. According to him many people gathered and he saw the old man was lying dead in his shop after receiving injuries. PW-7 Dr. Zakir Hussain, on 19.6.2002 he was posted as Medical Officer, District Headquarter Hospital, Turbat. On the said date at 1.40 p.m., he examined the dead body of. deceased Fazal Karim son of Noor Muhammad. He found multiple entrance bullet wounds on left side of Axila involved the left side of chest and left side of the neck and damaged the heart and left lung. There was no exist of bullets as per Medical Certificate as the fire was from the closed distance. The cause of death has been indicated due to damage of vital organs (lung and heart). The weapon of offence has been indicated fire arms. According to doctor, the above injuries were sufficient in the ordinary course of nature to cause death. He has produced MLC Ex.P/7-A. In cross-examination, he has stated that there were more than 15 arm injuries on the person of deceased. PW-8 Muhammad Karim, he is also the Investigating Officer who prepared incomplete challan Ex- P/8-A. The house of Munshi Muhammad was raided but he could not be arrested. He has also produced report of FSL as Ex-P/8-B and subsequent incomplete challan Ex-P/8-C.
19. 6.In his statement recorded u/S. 342 Cr.P.C. accused Abdul Qadeer has disputed the case of the prosecution and pleaded his innocence. He has also made his statement on oath as per provisions contained under Section 340(2) Cr.P.C. He has also produced DW-1 Dr. Mukhtar Alam, DW-2 Abdul Basit and DW-3 Tariq in his defence.
20. 7.The learned Special Judge formulated the following points for determination:-- 1.Whether the deceased Fazal karim son of Noor Muhammad died on 19.6.2002 an un-natural death?
21. 2.Whether accused Abdul Qadeer son of Haji Whid Bux alongwith absconding accused Munshi Muhammad, Jamadar Muhammad Khan, Aslam, Zahid and Nizam committed Qatl-eAmd of deceased Fazal Karim by firing at him by means of Kalas hnikov?
22. 3 If afore-noted points are determined in affirmative then what offence is constituted and what should be the quantum of sentence?
23. 8.After assessm ent of the evidence learned Special Judger found Abdul Qadeer (since acquitted) and absconding accused Munshi Muhammad and Aslam responsible for the murder of deceased Fazal Karim and were accordingly convicted and sentenced in the manner hereinabove mentioned.
24. 9.Learned Special Judge has however, acquitted Jamadar Muhammad Khan, Zahid and Nizam of the charge.
25. 10.The learned Judge, Anti-Terrorism Court has forwarded the instant murder reference for confirmation of the sentence of death awarded to the accused Munshi Muhammad and Aslam.
26. Abdul Qadeer has since been acquitted of the charge on the basis of compromise by this Court vide Order dated 5.6.2003. An appeal Being No, 66/2002 was also filed against acquittal of Jamadar Muhammad Khan and Zahid.
27. 11.We have heard Mr. Khalid Dogar, Special Prosecutor and Mr. Amanullah Kanrani, Advocate learned counsel for pauper absconding convicts and acquitted respondents.
28. 12.Learned counsel for the convicted absconding accused persons Munshi Muhammad and Aslam has contended that the offence alleged against convicted absconding accused persons and others did not fall within the purview of Section 6 of the Anti-Terrorism Act, 1997 nor the prosecution claimed that the offence was designed to create fear or insecurity in the society therefore, the conviction and sentence recorded by the learned trial Court are not warranted by law as the learned lower Court had no jurisdiction to adjudicate upon the matter. Learned counsel in support of its contention has relied upon the authorities reported in 2004 P.Cr L.J. 1878, NLR 2004 Cr. 588, PLD 2003 Qta 11, 2002 NLR S.C. (A.C.) 1, Judgment dated 06.8.2001 passed In C.P. No, 681/99 and Judgment dated 14.9.2004 passed in Criminal Appeal No, 85/2004 (ATA).
29. 13.On the other hand learned Special Prosecution ATA has submitted that the objection ,regarding jurisdiction has been raised for the first time although, the learned trial Judge vide impugned judgment acquitted three accused persons and Abdul Qadeer was awarded life imprisonment who has since been acquitted of the charge on the basis of compromise and the aforesaid accused persons were/are also represented by the same learned counsel. He has further added that the learned Judge had the jurisdiction to adjudicate upon the instant case. We are unable to agree with the arguments of learned counsel for absconding accused as there is no dispute that the incident took place in main bazaar during daylight. According to PW-6 Falak Sher on account of fear, he concealed himself beneath the table. The learned Anti-Terrorism Court taking into consideration the facts and circumstances of the case took cognizance of the same and also framed charge under Section 7(a) of the Anti-Terrorism Act 1997. The Hon'ble Supreme Court in the authority reported in PLD 2004 S.C. 917 have made the following observations: 8.The very object to promulgate Anti-Terrorism Act, 1997 was to control the acts of terrorism, sectarian violence and other heinous offences as defined in Section 6 of the Act and their speedy trials. To bring an offence within the ambit of the Act, it is essential to examine that the said offence should have nexus with the object of the Act and the offences covered by its Sections 6, 7 and 8. On bare perusal of sub-clauses (b) (d), (h) and (i) of sub-section (1) of Section 6 of the Act, it is abundantly clear that the offence which creates a sense of fear or insecurity in society, causes death or endangers a person's life, involves firing on religious, congregations, mosques, imambargahs, churches, temples and all other places of worship, or random firing to spread panic, or involves any forcible takeover of mosques or other places of worships, falls within its ambit.
30. 9.In the case in the hand, though the motive is show to be a previous enmity, yet paramount consideration to be taken note of is the cumulative fall out of the occurrence. The incident having taken place in Mosque a public place particularly during Jumma prayer, where a large number of people usually assemble to offer prayer is sufficient to attract the provisions of Section 6 of the Act.
31. In such cases, the time, place and manner of the act is of eminence importance. It would be relevant to reproduce the meaning of word `public place' as defined in the Prohibition (Enforcement of Hadd) Order, 1979:. "Public place" means a street, road, thoroughfare, park, garden or other place to which the public have free access and includes a hotel restaurant, motel, mess and club, but does not include the residential room of a hotel in the occupation of some person".
32. 10.Mosque being a place to which public has free access is fully covered by above definition.
33. Thus the provisions of Section 6 of the Act, would be applicable in this case as the fateful episode admittedly took place inside the mosque during Jumma prayer. Dictum laid down by this Court in the case of State through Advocate General, N.W.F.P., Peshawar, referred (supra) fully supports the contentions raised in the instant case whereas the case of Ch. Bashir Ahmad referred (supra) is on different facts and circumstances and has no bearing with the case in hand mainly for the reasons that the provisions of Anti-Terrorism Act are not attracted as the alleged sprinkling of spirit on the person of victim was made within the boundary wall of the complainant's house. It is also held in that case that where offence was not committed in a public place, the element of a striking terror or creating sense of fear and insecurity in the people was not attracted.
34. It is also pertinent to note that on conclusion of trial, the learned Special Judge came to the conclusion that the accused persons committed offence under Section 302(b) PPC and 7(a) of Anti-Terrorism Act, 1997 and accordingly convicted them which in view of Section 21-M(2) Anti- Terrorism Act, 1997, he was justified. Besides, no prejudice has been caused to the A absconding accused by their trial by Special Court as the said Court in view of Section 32 of Anti-Terrorism Act is deemed to be the Court of Sessions. The observations made by the Hon'ble Supreme Court in the authority reported in PLD 2003 S.C. 224 are noteworthy and the relevant portion is reproduced below for the sake of facility:-- "There is another important distinguishable feature of the case that in the present petition the trial after its conclusion resulted in the conviction of the respondent by the Special Court. The order impugned has been passed in an appeal. The Special Court was presided over by a Sessions Judge appointed by the Government after consultation with the learned Chief Justice of the High Court concerned. The provisions of the Code of Criminal Procedure, 1898, are made applicable to the proceedings before a. Special Court and for the purposes of the said provisions of Cr.P.C. a Special Court shall be deemed to be a Court of Session by virtue of Section 32 of the Act. In this view of the matter, no prejudice whatsoever has been caused to the respondent for his trial by the Special Court. The case relied upon the respondent are totally distinguishable as the facts and circumstances of the present case, as already stated, are entirely different wherein the trial had already been concluded and impugned order passed in the criminal appeal." .
35. 14.Having regard to the circumstances of case and authorities of the Hon'ble Superior Courts, the conviction of absconding accused recorded by the trial Court cannot be invalidated.
36. 15.Regarding Criminal Appeal No, 66/2002 learned counsel for respondents Jamadar Muhammad Khan and Nizam has contended that the learned trial Court acquitted the respondents by impugned judgment and the appeal under Section 25 of Anti-Terrorism Act, 1997 has been filed on behalf of state by the learned Additional Advocate General being appellant and that too without seeking direction of the Provincial or Federal Government, therefore, in view of provisions of aforesaid section being a special law is not maintainable. In this connection reliance has been placed on the authority reported in 2000 P.Cr. L.J. 1418 wherein, it has been observed: "The Section 417 Cr.P.C. lays down that only "Public Prosecutor" is competent to file the appeal, whereas under the Anti-Terrosim Act only "Attorney General" or "Advocate General" are competent to file the appeal on the directives of respective Governments. No third category by way of "Additional Advocate General" or "Public Prosecutor" has been empowered to file such appeal under Section 25 of the Anti-Terrorism Act. Thus, the contention of the learned Additional Advocate General that being a Public Prosecutor he.was competent to file the above appeal is misconceived."
16. On the other hand learned Special Prosecutor has not been able to controvert -the contention so raised by the learned counsel for respondents. The learned trial Judge did not believe the prosecution evidence in respect of aforesaid respondents and accordingly found the prosecution case to be doubtful in respect of acquitted respondents by expressing himself in the following words:-- 31. Now coming to the allegation of prosecution against accused Jamadar Muhammad Khan, Zahid and Nizam. According to. PW-2 Naseem and PW-3 Muhammad Saeed who were eye-witness of the incident and their statement has been considered crediabie, confidence inspiring and trust worthy. They have in a clear term stated that when accused Abdul Qadeer, Munshi Muhammad and Aslam committed ,firing upon deceased Fazal Karim, these accused persons were remained sitting in the car. The above prosecution witnesses have also failed to point out the kind of weapon, they if any were carrying, thought the eye-witness were present near them. It is argued by the learned public prosecutor Mr. Muhammad Iqbal that although the accused Jamadar Muhammad Khan, Zahid and Nizam have played no role in the commission of offence but they have formed unlawful assembly and they are vicariously liable and having common intention, therefore, irrespective of any role they are also responsible for commission of offence due to common intention. I have considered this aspect of the case. It is admitted position that there is previous enmity between the party and all the accused persona present at the sport in a alto car, therefore, accused persons were remained in the car and they didn't came out from the car nor they have formed any unlawful assembly using force or violence in the prosecution of common object of such assembly, the above three accused have also not taken any steps either to share the common object of Munshi Muhammad etc. nor they provided any assistance to them in respect of commission of offence mere presence of three accused persons at the place of incident does not necessary attract common intention or common object. In respect of unlawful assembly I am relying case law reported in PLD 1996 S.C. 2199(b). The relevant portion is produced as under:- "S. 148. Rioting, armed with deadly weapon--Accused person cannot be conviction under Section 148 PPC unless he is found to be a member of an unlawful assembly using force or violence in prosecution of the common object of such assembly." Whereas, the common intention as alleged on the part of accused Jamadar Muhammad Khan, Zahid and Nizam is concerned in this respect the prosecution has also failed to established the pre-concret and pre-arrangement of these accused persons through direct evidence. Since the common intention is state of mind can only be inferred from the attending circumstances of the crime. There is no such evidence on record against three accused persons. In this respect I am relying case law reported in 1978 SCM R 49. The relevant portion of case law are as under: "Vicarious liability cannot be visited unless some strong circumstances existing showing common intention mere presence of a person on spot, held does not necessarily attract Section 34."
37. 17.The learned trial Judge has discussed the evidence and has given reason for his conclusion.
38. Even otherwise, the mere presence of respondents in the car without any overt act towards commission of crime has brought their case distinguishable from accused persons who made firing upon deceased as a result of which Fazal karim died at the sport. The judgment of the trial Judge in respect of acquitted respondents does not suffer from any illegality or material irregularity. It is now well Settled that Courts shotild be slow to interference with judgment of acquittal unless it is felt that gross injustice had been done in the administration of criminal justice or that the judgment of trial Court was perverse, completely illegal and on perusal of evidence, no other conclusion could be made except that the accused was guilty or there had been complete misreading of evidence leading to miscarriage of justice. Reliance can also be placed on the authorities reported in 1992 SCM R 96, 1995 SCM R 635 and 1992 SCM R 1036.
39. In view of above legal and factual positions, the appeal against acquittal being incompetent and having no substance is accordingly dismissed. The respondents who were allowed bail by this Court on 11.12.2003 are discharged from their bail bonds.
18. After hearing the learned counsel for the parties and having gone through the relevant record with their assistance, it can be stated that the impugned judgment in respect of absconding convicts is neither arbitrary nor perverse. The trial Court has discussed the evidence and the learned counsel for pauper absconding convicts has not been able to point out any illegality or irregularity as to how the impugned judgment is not sustainable. The eye-account of the occurrence has been furnished by PW-2 Naseem and PW-3 Muhammad Saeed. In cross- examination of these witnesses, nothing has been elicited to detract the value of the testimony. The ocular evidence furnished by PW-2 Naseem and PW-3 Muhammad Saeed supported by the medical as well as circumstantial evidence have been found worthy of reliance and confidence inspiring by the learned trial Court. Similarly absconsion of accused has been considered as corroborative evidence.
19. The learned trial Court while dealing with the evidence of the prosecution witnesses in respect of absconding convicts and Abdul Qadeer has made observations in the judgment, the relevant portion of which is reproduced below for the sake of facility:-- 28. The prosecution evidence as discussed above and the defence version is on record which has been considered and viewed minutely. The case of prosecution is based on ocular testimoney of two eye-witnesses PW-2 Naseem and PW-3 Muhammad Saeed. They have narrated the facts of their presence at the place of incident and furnished the account of incident. Both of these eyewitnesses in clear terms nominated three accused persons namely Abdul Qadeer, Munshi Muhammad and Aslam according to them they started firing upon deceased by means of Kalashnikov when deceased was standing in the kabab shop, these accused persons have committed firing upon deceased in a close rang and due to indiscriminate firing deceased Fazal karim received fire-arms injuries. The ocular evidence of PW-2 was further corroborated by PW-7 Dr. Zakir Hussain who produced MLC Ex-P/7-A which also indicates that there were multiple fire- arm injuries on the person of deceased Fazal Karim. According to Medical Officer left side of deceased Fazal Karim chest was damaged and vital organ i,e, heart and lung were completely damaged, according to PW-7 the fire-arm injuries were caused from close rang which also given support to the version furnished by PW-2 Naseem and PW-3 Muhammad Saeed. The version of PW-2 Naseem and PW-3 Muhammad Saeed were also supported by independent witness PW-6 Falak Sher in cross-examination he replied that a car came and stopped in front of his shop and he heard burst of firing. This portion of PW-6 further gave support to the version furnished by eye- witness PW-2 Naseem and PW-3 Muhammad Saeed."
40. Similarly, the learned trial Court while resolving Point No, 2 in Para No, 33 of the judgment has observed as under:-- 33. Therefore, evidence on record is not sufficient to came to a conclusion that the accused Muhammad Khan, Zahid and Nizam had at any stage had common intention with the 'accused Abdul Qadeer, Munshi Muhammad and Aslam to commit murder. In the absence of common intention, there is nothing against to connect them in the commission of offence. The accused Abdul Qadeer, Munshi Muhammad and Aslam are nominated in the FIR promptly recorded, as the occurrence took place at 1.30 p.m. and the FIR was recorded at 1-45 p.m. It was a daylight occurrence, the parties are related. There is no question of mistaken identify. The statement of both the eye-witness PW-2 Naseem and PW-3 Muhammad Saeed are consistent on material point, their presence at the spot at relevant time has also been established and their evidence inspiring confidence, therefore, in the above discussion of entire evidence on record and keeping in view of the attending circumstances of the case, it is concluded that accused Abdul Qadeer, Munshi Muhammad and Aslam committed the murder of deceased Fazal Karim by way of firing from Kalashnikove upon him, therefore, Point. No, 2 is decided accordingly."
41. 20.We have no reason to suspect their words about the manner of incident took place, presence of absconding convicts and Abdul Qadeer at the place of occurrence and sustaining of fire-arm injuries by deceased Fazal Karim. There is evidence that absconding convicts and Abdul Qadeer were armed with Kalashnikov made firing and a result of such firing Fazal Karim sustained fire-arm injuries and died at the spot.
42. 21.Common intention has to be gathered from the facts disclosed in evidence and surrounding circumstances, common intention can be formed at the spur of the moment. It may, therefore, be stated that once it is found that the accused had common intention to the crime, it is immaterial as to which part was played by whom. Section 34 PPC clearly lays down that when a crime is committed in furtherance of common intention of several persons, each one of such person would be liable for the offence, as if, he .E alone had perpetrated it. The very purpose of this provision of law is to create joint liability for those, who indulge in the organized commission of crime. In the nature of things, it cannot be said of certain the exact part of each one, if several accused persons acting with common intention and object. In the instant case, the absconding convicts' and Abdul Qadeer have rightly been found to have had shared common intention for commission of the offence.
22. As far unnatural death of deceased Fazal Karim is concerned besides, ocular evidence, there is evidence of PW-1 Dr. Zakir Hussain regarding external examination of deceased Fazal. Karim.
43. From the examination of dead-body of deceased, the doctor is of the opinion that the death of Fazal Karim has occurred on account of damage of vital organs (lung and heart). From the nature of injuries sustained by deceased person and medical evidence, it can be concluded that whoever caused the injuries had intention to cause such injuries, as were sufficient in the ordinary course of nature, likely to cause death or with knowledge that the act was so imminently dangerous that it must be in all probability to cause death.
44. 23.Learned counsel for the pauper absconding convicts has next stressed upon the rule of consistency as according to him Abdul Qadeer co-convict with identical role charged with the same offence and convicted by the same Court has been sentenced to life imprisonment while pauper absconding convicts Munshi Muhammad and Aslam have been sentenced to death. It is stated that the case of the pauper absconding convicts was not different from that of the co- convict who has since been acquitted of the charge on the basis of compromise.
45. 24.On the other hand learned Special Prosecutor has not been able to controvert this contention of the learned counsel for pauper absconding convicts. There is evidence that the absconding convicts and Abdul Qadeer co-convicts who were armed with Kalashnikovs made firing upon deceased Fazal karim who died at the spot.
46. 25.Having regard to the above mentioned facts and circumstances of the case, it can be stated that pauper absconding convicts and their co-convict Abdul Qadeer are responsible for the murder of deceased Fazal Karim. There is hardly any reason to interfere with the conviction recorded against absconding convicts being fugitive from law. Regarding consistency in sentence and for the safe administration of justice, pauper absconding convicts were also entitled for equal treatment. Learned Special Prosecutor representing the state has even not been able to controvert the contention. The case of pauper absconding convicts was identical to that of Abdul Qadeer therefore, the principle of consistency in awarding sentence should have been followed.
47. 26.Keeping in view the principle of consistency, we are of the view that the ends of justice would be met, if the death sentences awarded by the trial Court to pauper absconding convicts Munshi Muhammad and Aslam are reduced to life imprisonment. Order accordingly.
48. Murder reference stands disposed of in the above terms. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.